H. R. 36. To amend title 18, United States Code, to protect paincapable. children, and for other purposes. IN THE HOUSE OF REPRESENTATIVES

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1 I 114TH CONGRESS 1ST SESSION H. R. 36 To amend title 18, United States Code, to protect pain-capable unborn children, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JANUARY 6, 2015 Mr. FRANKS of Arizona (for himself and Mrs. BLACKBURN) introduced the following bill; which was referred to the Committee on the Judiciary A BILL To amend title 18, United States Code, to protect paincapable unborn children, and for other purposes Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE. This Act may be cited as the Pain-Capable Unborn Child Protection Act. SEC. 2. LEGISLATIVE FINDINGS AND DECLARATION OF CONSTITUTIONAL AUTHORITY FOR ENACT- MENT. emcdonald on DSK67QTVN1PROD with BILLS 9 Congress finds and declares the following: VerDate Sep :25 Jan 09, 2015 Jkt PO Frm Fmt 6652 Sfmt 6201 E:\BILLS\H36.IH H36

2 2 1 (1) Pain receptors (nociceptors) are present 2 throughout the unborn child s entire body and 3 nerves link these receptors to the brain s thalamus 4 and subcortical plate by no later than 20 weeks after 5 fertilization. 6 (2) By 8 weeks after fertilization, the unborn 7 child reacts to touch. After 20 weeks, the unborn 8 child reacts to stimuli that would be recognized as 9 painful if applied to an adult human, for example, 10 by recoiling. 11 (3) In the unborn child, application of such 12 painful stimuli is associated with significant in- 13 creases in stress hormones known as the stress re- 14 sponse. 15 (4) Subjection to such painful stimuli is associ- 16 ated with long-term harmful neurodevelopmental ef- 17 fects, such as altered pain sensitivity and, possibly, 18 emotional, behavioral, and learning disabilities later 19 in life. 20 (5) For the purposes of surgery on unborn chil- 21 dren, fetal anesthesia is routinely administered and 22 is associated with a decrease in stress hormones 23 compared to their level when painful stimuli are ap- 24 plied without such anesthesia. In the United States, 25 surgery of this type is being performed by 20 weeks VerDate Sep :25 Jan 09, 2015 Jkt PO Frm Fmt 6652 Sfmt 6201 E:\BILLS\H36.IH H36

3 3 1 after fertilization and earlier in specialized units af- 2 filiated with children s hospitals. 3 (6) The position, asserted by some physicians, 4 that the unborn child is incapable of experiencing 5 pain until a point later in pregnancy than 20 weeks 6 after fertilization predominately rests on the as- 7 sumption that the ability to experience pain depends 8 on the cerebral cortex and requires nerve connec- 9 tions between the thalamus and the cortex. However, 10 recent medical research and analysis, especially since , provides strong evidence for the conclusion 12 that a functioning cortex is not necessary to experi- 13 ence pain. 14 (7) Substantial evidence indicates that children 15 born missing the bulk of the cerebral cortex, those 16 with hydranencephaly, nevertheless experience pain. 17 (8) In adult humans and in animals, stimula- 18 tion or ablation of the cerebral cortex does not alter 19 pain perception, while stimulation or ablation of the 20 thalamus does. 21 (9) Substantial evidence indicates that struc- 22 tures used for pain processing in early development 23 differ from those of adults, using different neural 24 elements available at specific times during develop- VerDate Sep :25 Jan 09, 2015 Jkt PO Frm Fmt 6652 Sfmt 6201 E:\BILLS\H36.IH H36

4 4 1 ment, such as the subcortical plate, to fulfill the role 2 of pain processing. 3 (10) The position, asserted by some commenta- 4 tors, that the unborn child remains in a coma-like 5 sleep state that precludes the unborn child experi- 6 encing pain is inconsistent with the documented re- 7 action of unborn children to painful stimuli and with 8 the experience of fetal surgeons who have found it 9 necessary to sedate the unborn child with anesthesia 10 to prevent the unborn child from engaging in vig- 11 orous movement in reaction to invasive surgery. 12 (11) Consequently, there is substantial medical 13 evidence that an unborn child is capable of experi- 14 encing pain at least by 20 weeks after fertilization, 15 if not earlier. 16 (12) It is the purpose of the Congress to assert 17 a compelling governmental interest in protecting the 18 lives of unborn children from the stage at which sub- 19 stantial medical evidence indicates that they are ca- 20 pable of feeling pain. 21 (13) The compelling governmental interest in 22 protecting the lives of unborn children from the 23 stage at which substantial medical evidence indicates 24 that they are capable of feeling pain is intended to 25 be separate from and independent of the compelling VerDate Sep :25 Jan 09, 2015 Jkt PO Frm Fmt 6652 Sfmt 6201 E:\BILLS\H36.IH H36

5 5 1 governmental interest in protecting the lives of un- 2 born children from the stage of viability, and neither 3 governmental interest is intended to replace the 4 other. 5 (14) Congress has authority to extend protec- 6 tion to pain-capable unborn children under the Su- 7 preme Court s Commerce Clause precedents and 8 under the Constitution s grants of powers to Con- 9 gress under the Equal Protection, Due Process, and 10 Enforcement Clauses of the Fourteenth Amendment SEC. 3. PAIN-CAPABLE UNBORN CHILD PROTECTION. (a) IN GENERAL. Chapter 74 of title 18, United States Code, is amended by inserting after section 1531 the following: Pain-capable unborn child protection (a) UNLAWFUL CONDUCT. Notwithstanding any other provision of law, it shall be unlawful for any person to perform an abortion or attempt to do so, unless in conformity with the requirements set forth in subsection (b). (b) REQUIREMENTS FOR ABORTIONS. (1) The physician performing or attempting the abortion shall first make a determination of the probable post-fertilization age of the unborn child or reasonably rely upon such a determination made by another physician. In making such a determination, VerDate Sep :25 Jan 09, 2015 Jkt PO Frm Fmt 6652 Sfmt 6201 E:\BILLS\H36.IH H36

6 6 1 the physician shall make such inquiries of the preg- 2 nant woman and perform or cause to be performed 3 such medical examinations and tests as a reasonably 4 prudent physician, knowledgeable about the case and 5 the medical conditions involved, would consider nec- 6 essary to make an accurate determination of post- 7 fertilization age. 8 (2)(A) Except as provided in subparagraph 9 (B), the abortion shall not be performed or at- 10 tempted, if the probable post-fertilization age, as de- 11 termined under paragraph (1), of the unborn child 12 is 20 weeks or greater. 13 (B) Subject to subparagraph (C), subpara- 14 graph (A) does not apply if 15 (i) in reasonable medical judgment, the 16 abortion is necessary to save the life of a preg- 17 nant woman whose life is endangered by a 18 physical disorder, physical illness, or physical 19 injury, including a life-endangering physical 20 condition caused by or arising from the preg- 21 nancy itself, but not including psychological or 22 emotional conditions; or 23 (ii) the pregnancy is the result of rape, or 24 the result of incest against a minor, if the rape 25 has been reported at any time prior to the abor- VerDate Sep :25 Jan 09, 2015 Jkt PO Frm Fmt 6652 Sfmt 6201 E:\BILLS\H36.IH H36

7 7 1 tion to an appropriate law enforcement agency, 2 or if the incest against a minor has been re- 3 ported at any time prior to the abortion to an 4 appropriate law enforcement agency or to a 5 government agency legally authorized to act on 6 reports of child abuse or neglect. 7 (C) Notwithstanding the definitions of abor- 8 tion and attempt an abortion in this section, a 9 physician terminating or attempting to terminate a 10 pregnancy under an exception provided by subpara- 11 graph (B) may do so only in the manner which, in 12 reasonable medical judgment, provides the best op- 13 portunity for the unborn child to survive, unless, in 14 reasonable medical judgment, termination of the 15 pregnancy in that manner would pose a greater risk 16 of 17 (i) the death of the pregnant woman; or 18 (ii) the substantial and irreversible phys- 19 ical impairment of a major bodily function, not 20 including psychological or emotional conditions, 21 of the pregnant woman; 22 than would other available methods (c) CRIMINAL PENALTY. Whoever violates sub- section (a) shall be fined under this title or imprisoned for not more than 5 years, or both. VerDate Sep :25 Jan 09, 2015 Jkt PO Frm Fmt 6652 Sfmt 6201 E:\BILLS\H36.IH H36

8 8 1 (d) BAR TO PROSECUTION. A woman upon whom 2 an abortion in violation of subsection (a) is performed or 3 attempted may not be prosecuted under, or for a con- 4 spiracy to violate, subsection (a), or for an offense under 5 section 2, 3, or 4 of this title based on such a violation. 6 (e) DEFINITIONS. In this section the following 7 definitions apply: 8 (1) ABORTION. The term abortion means 9 the use or prescription of any instrument, medicine, 10 drug, or any other substance or device 11 (A) to intentionally kill the unborn child 12 of a woman known to be pregnant; or 13 (B) to intentionally terminate the preg- 14 nancy of a woman known to be pregnant, with 15 an intention other than 16 (i) after viability to produce a live 17 birth and preserve the life and health of 18 the child born alive; or 19 (ii) to remove a dead unborn child. 20 (2) ATTEMPT AN ABORTION. The term at- 21 tempt, with respect to an abortion, means conduct 22 that, under the circumstances as the actor believes 23 them to be, constitutes a substantial step in a course 24 of conduct planned to culminate in performing an 25 abortion. VerDate Sep :25 Jan 09, 2015 Jkt PO Frm Fmt 6652 Sfmt 6201 E:\BILLS\H36.IH H36

9 9 1 (3) FERTILIZATION. The term fertilization 2 means the fusion of human spermatozoon with a 3 human ovum. 4 (4) PERFORM. The term perform, with re- 5 spect to an abortion, includes induce an abortion 6 through a medical or chemical intervention including 7 writing a prescription for a drug or device intended 8 to result in an abortion. 9 (5) PHYSICIAN. The term physician means 10 a person licensed to practice medicine and surgery 11 or osteopathic medicine and surgery, or otherwise le- 12 gally authorized to perform an abortion. 13 (6) POST-FERTILIZATION AGE. The term 14 post-fertilization age means the age of the unborn 15 child as calculated from the fusion of a human 16 spermatozoon with a human ovum (7) PROBABLE POST-FERTILIZATION AGE OF THE UNBORN CHILD. The term probable post-fertilization age of the unborn child means what, in reasonable medical judgment, will with reasonable probability be the postfertilization age of the unborn child at the time the abortion is planned to be performed or induced. (8) REASONABLE MEDICAL JUDGMENT. The term reasonable medical judgment means a medical VerDate Sep :25 Jan 09, 2015 Jkt PO Frm Fmt 6652 Sfmt 6201 E:\BILLS\H36.IH H36

10 judgment that would be made by a reasonably prudent physician, knowledgeable about the case and the treatment possibilities with respect to the medical conditions involved. (9) UNBORN CHILD. The term unborn child means an individual organism of the species homo sapiens, beginning at fertilization, until the point of being born alive as defined in section 8(b) of title 1. (10) WOMAN. The term woman means a female human being whether or not she has reached the age of majority.. (b) CLERICAL AMENDMENT. The table of sections at the beginning of chapter 74 of title 18, United States Code, is amended by adding at the end the following new item: Pain-capable unborn child protection (c) CHAPTER HEADING AMENDMENTS. (1) CHAPTER HEADING IN CHAPTER. The emcdonald on DSK67QTVN1PROD with BILLS 18 chapter heading for chapter 74 of title 18, United 19 States Code, is amended by striking PARTIAL- 20 BIRTH ABORTIONS and inserting ABOR- 21 TIONS. 22 (2) TABLE OF CHAPTERS FOR PART I. The 23 item relating to chapter 74 in the table of chapters 24 at the beginning of part I of title 18, United States VerDate Sep :25 Jan 09, 2015 Jkt PO Frm Fmt 6652 Sfmt 6201 E:\BILLS\H36.IH H36

11 Code, is amended by striking Partial-Birth Abortions and inserting Abortions. Æ emcdonald on DSK67QTVN1PROD with BILLS VerDate Sep :25 Jan 09, 2015 Jkt PO Frm Fmt 6652 Sfmt 6301 E:\BILLS\H36.IH H36